The general rule as to allegation of title in an action strictly personal, at common law, cannot be doubted; and it is not necessary that the evidence of the title should be stated. But all that is claimed here, on these points by the respondents, is that they should have been put upon notice by a general allegation that the appellant was the owner or in possession of the land from which the wood was severed. The defendants would then have put that fact in issue by a denial.
The case of Halleck v. Mixer establishes the following propositions:
1. That if it appears, whether on the face of the complaint or under the proofs, that the plaintiff's title to the woodrests upon his title to the land, and at the time of the cutting of the wood he is not in possession, but the defendant is, claiming the land adversely under color of title, the action of replevin cannot be maintained, because the Court will not determine the land title in the personal action.
2. But in other cases proof is admissible of title to the land, as the means of showing title to the wood; that is, where the title to the wood is founded on the title or possession of the land, and the defendant is a mere intruder or trespasser.
3. But in such case, in order to admit proof of the plaintiff's title or possession of the land, such title or possession must be alleged, because the title to the chattel is inseparably connected with the right to the land, and because it is that upon such proof the right of recovery rests.
The defendants did not deny in the Court below that the Court had a discretionary power to order a change of venue; but the defendants claimed that the proof upon the affidavits did not justify the Court in making the order, for the reason that the convenience of parties and of witnesses would not be subserved, but rather hindered thereby.
Nosuch rule as that sought to be sustained by the cases cited in New York has been recognized in this State; and your Honors would not disturb the action of the Court below unless it was apparent that its discretion had been grossly abused.
JUDGES: Crocker, J. delivered the opinion of the Court. Norton, J. concurring.
OPINION
CROCKER, Judge
This is an action brought in San Joaquin County to recover the possession of a quantity of cord wood, alleged to have been taken from the plaintiff's possession in Stanislaus County, and then detained in the County of San Joaquin. The defendant recovered judgment, from which the plaintiff appeals.
The plaintiff, after issue joined, moved the Court for a change of venue to Stanislaus County, alleging in his affidavit that his right to the wood depended upon his title and possession of the land from which the wood was cut, which lay in Stanislaus County, and that the convenience of witnesses, seventeen of whom are stated to be residents of Stanislaus County, required a change of the place of trial to the latter county. He also states good reasons why he commenced the action in San Joaquin County, to wit: the necessity of procuring the immediate possession of the wood before it could be removed beyond his reach to some other part of the State. No opposing affidavits appear to have been filed. The Court denied the application, and this is assigned for error. We see no good reason why the plaintiff in an action may not have the place of trial changed, upon a proper showing, equally with the defendant. There is nothing in the statute forbidding it. Sec. 21 of the Practice Act provides that " The Court may, on motion, change the place of trial in the following cases," etc. It does not confine this motion to the defendant, but leaves it open for both parties. As a general rule, the action should be commenced in the county where the defendants reside; but if, after the issues are made up, and each party knows the facts necessary to be proved, the plaintiff should find that the convenience of his witnesses requires that the trial should be had in some other county, where the cause of action arose, and where his witnesses reside, he is certainly as much entitled to a change as the defendant would be under the same circumstances, and he should not be denied that right because he has brought his action in the county where the defendants reside, or where the personal property in controversy may happen to be found. The present case shows the importance of thus establishing the rule. The plaintiff finds his property in San Joaquin County, and to prevent its being carried away beyond his reach, or being converted by the trespasser, he commenced his suit in that county to recover its possession. But the property was taken from his possession in Stanislaus County, where the act was committed which forms the gravamen of the action, and where it is presumed the witnesses reside who know the facts. The Court therefore erred in refusing to change the place of trial.
During the trial, the plaintiff called a witness, and offered to prove by him that he owned the land upon which the wood in question was cut, and sold the wood to the plaintiff, and put the following question to the witness: " Who was the owner and in possession of the land upon which the wood in question was cut and taken away by the defendants?" The defendants objected to the question, because it was inquiring into the title of land, and the plaintiff had made no allegation of such title in his complaint. The Court sustained the objection, and excluded all evidence relating to the title or possession of the land on which the wood was cut. After the plaintiff had closed his testimony, the defendants moved for a nonsuit, on the ground that the plaintiff's title to the wood depended upon the title of his vendors to the land upon which the wood was cut, and no such fact of title was averred in the complaint, or proved. The Court granted the nonsuit, and these rulings of the Court are assigned as error.
The Court erred in excluding the evidence, and in granting the nonsuit on the ground stated. In discussing the rules of pleading, this Court say, in the case of Green v. Palmer , 15 Cal. 411: " To illustrate this, let us suppose an ultimate fact, upon the establishment of which the claim or defense depends, and that the establishment of this fact depends upon the establishment of three or four prior facts, which being established proves this. It is the ultimate fact, and not the prior or probative facts, which should be set forth." To apply this rule to the present case. The ultimate fact to be established here is the ownership of the wood, when it was taken away by the defendants. The establishment of this fact depends upon establishing the ownership and possession of the land from which it was severed. These latter are, therefore, but probative facts, and need not to be set forth; but the ultimate fact, to wit: the ownership of the wood being stated, it is sufficient. The principle that the owner of the land is entitled to the wood cut from it, where there is no other person in possession of the land, holding adversely in good faith under claim and color of title, was fully established in the case of Halleck v. Mixer , 16 Cal. 574, and a similar principle had been sustained by this Court in the case of Sands v. Pfeiffer , 10 Cal. 263. It is true that in the case of Halleck v. Mixer, the facts relating to the ownership and possession of the land by the plaintiffs were fully set forth in the complaint, and there is no impropriety in making the averments in that manner; but it is not essential that they should be so stated in order to admit the proof of such facts.
The judgment is therefore reversed, and the cause remanded for further proceedings.